A New Frontier: Best Practices in Fraud Investigations

Highly-publicized fraud schemes, the change in presidential administration, and the biggest economic downturn in recent history have brought scrutiny on both the SEC and the DOJ and prompted potential changes to both their structures and enforcement priorities. New SEC Chairwoman Mary Shapiro has obtained budget increases and outlined plans to increase the effectiveness of enforcement. At the DOJ, enforcement is likely to be more robust as the Obama administration seeks to reassure distressed citizens that the government is actively enforcing regulations designed to protect investors and consumers. This webcast addresses critical questions about recent changes in the economic and political climates, emerging trends in SEC and DOJ enforcement, and the potential impact on lawyers, accountants, investigators, and other consultants who perform fraud investigations. It also outlines best practices when conducting investigations for the DOJ and SEC.

Please join panelists Gary Kleinrichert, Senior Managing Director in FTI Consulting’s Forensic and Litigation Consulting Practice; Pravin Rao, formerly an Assistant U.S. Attorney in the Northern District of Illinois and currently a partner in the Litigation group of Perkins Coie; and Jose A. Lopez, formerly a Senior Attorney at the United States Securities and Exchange Commission's Division of Enforcement and currently a Partner at Schopf & Weiss LLP specializing in Securities Litigation, as they address these issues as well as your questions in a free, one-hour webcast.

This seminar will analyze Lucia v. Securities and Exchange Commission, in which the Supreme Court will address the constitutionality of the Securities and Exchange Commission’s (“SEC”) Administrative Law Judges. Oral argument in this case is set for April 23, 2018. Among other items, this session will cover:

· An overview of the SEC administrative process, including the genesis of the constitutional challenges to the forum and the changes that the SEC made to its Rules of Practice in response to those constitutional challenges;
· A review of the key Appointments Clause jurisprudence leading up to Lucia;
· An analysis of the potential outcomes of Lucia; and
· A practical discussion of the potential impact of Lucia on SEC administrative proceedings, whether pending or already adjudicated.

Please join Britt Whitesell Biles and Meryl D. Grenadier from Stein Mitchell Cipollone Beato & Missner LLP as they discuss this important Supreme Court case and its potential impact on SEC administrative proceedings. Ms. Biles recently joined Stein Mitchell from the SEC, where she served as Assistant Chief Litigation Counsel in the Division of Enforcement. At the SEC, Ms. Biles investigated and litigated securities enforcement actions, including administrative proceedings. In 2017, Ms. Biles received the SEC Chairman’s Award for Excellence for leading the litigation in the SEC’s groundbreaking law firm hacking case in which Chinese nationals were charged with securities fraud for trading on the basis of material nonpublic information that was stolen from law firms when their networks were hacked.

Within recent months, U.S. and international regulators have been moving swiftly to regulate cryptocurrency in various ways. On February 13, 2018, the U.S. Department of Treasury Financial Crimes Enforcement Network (FinCEN), in a letter to Senator Ron Wyden, Ranking Member on the Senate Finance Committee, reiterated its position that cryptocurrency exchanges are required to register as Money Service Businesses (MSB). The requirement to register as an MSB triggers the obligation to develop, document an anti-money laundering (AML) and sanctions compliance program.

In a panel discussion, Alma Angotti, Managing Director and Global Investigations & Compliance Practice Co-Leader at Navigant; and Claiborne (Clay) Porter, Managing Director and Head of Investigations at Navigant discuss the practical effects of FinCEN’s position and how companies in this industry can ensure that they don’t run afoul of AML and sanctions regulation and enforcement.

Topics to be covered include:

-- Determining whether your organization should be registered as an MSB
-- Developing, implementing and maintaining an effective AML and sanctions compliance program
-- How to address AML and sanctions compliance in an ever changing regulatory environment

The first quarterly reporting deadline for public companies is quickly approaching, and that reporting for the first time will include significant disclosures related to the newly-implemented accounting standards. By January 2018, companies were expected to update revenue recognition rules for all revenue arising from contracts with customers, which requires not only a change to financial statements, but related disclosures, business processes and internal controls over financial reporting.

In a panel discussion, Cathy Connolly of StoneTurn and Jonathan Shapiro of Baker Botts will focus on the changes brought about by the new rules, and address the questions they raise.

Topics to be covered include:

-- What types of issues may be brought to light? From what sources (internal, SEC, other)?
-- How does a company and its counsel respond?
-- What is the board’s response?
-- How can the key problems be quickly identified, and an effective response, including a remediation plan, be implemented?

Sapin II, the new French anti-corruption law, has been in effect for nearly a year now. The new law required companies with operations in France to implement compliance programs, created a new French anti-bribery agency, and created a judicial agreement similar in structure to the U.S. deferred prosecution agreement (“DPA”).

In a panel discussion, Xavier Oustalniol of StoneTurn, Daniel Kadar of Reed Smith and Dominique Laymand of Ipsen will provide an update on how these changes in French law are impacting companies and whistleblowers.

Topics to be covered include:
-- A Look at the Anti-Corruption Landscape
-- How are Affected Companies Handling the New Compliance Rules?
-- Quantifying the Anticipated Impact of the Law in Years to Come

In this annual webcast, our panel will analyze key SEC enforcement developments from 2017, and will discuss what to expect in 2018. Among other items, the panel will address:

• new SEC leadership and its new priorities;
• current legal and policy issues arising from cases involving the FCPA, financial fraud, insider trading, and investment management; and
• developments in the Whistleblower Program, the new Cyber Unit and Retail Strategy Task Force, and other ongoing initiatives.

Please join panelists Bill McLucas from Wilmer Cutler Pickering Hale and Dorr LLP; Doug Davison from Linklaters; and Marty Wilczynski and Steve Richards from Ankura Consulting as they address these and other developments in SEC enforcement.

In the midst of reported declines in securities enforcement, 2017 was yet another record year for reports to the SEC’s Office of the Whistleblower. In the six-year history of Dodd-Frank’s whistleblower provisions, the SEC has turned tens of thousands of tips into nearly a billion dollars in enforcement actions, returning over $160 million of the pockets of whistleblowers. In 2017, the SEC continued to financially reward those who come forward with information concerning potential securities violations as well as take aggressive enforcement actions against those alleged to have discouraged whistleblowing through retaliation or restrictive severance agreements. On top of all this, the federal courts continue to teem with civil anti-retaliation claims and the Supreme Court has agreed to decide the foundational question of whether Dodd-Frank’s anti-retaliation provisions apply to those who have not reported to the SEC.

These trends, coupled with dynamic developments in FCPA enforcement, provide the perfect storm for keeping in-house counsel and compliance professionals up at night.

Securities Docket is pleased to present its sixth annual webcast on the intersection of Dodd-Frank’s whistleblower provisions and the FCPA. This free 90-minute webcast will include a dynamic and participatory discussion on the statutory and regulatory framework of Dodd-Frank’s whistleblower provisions, discuss their interpretation by the SEC Office of the Whistleblower and federal courts, analyze their intersection with the FCPA, and provide participants with practical tips for navigating the minefield of whistleblower complaints.

Internal investigations have become a much higher-stakes issue for companies of all sizes. The SEC filed a record high number of enforcement actions in 2016. In recent years, the U.S. Department of Justice has expanded its interest in internal investigations from the “what” and “why” to also include an emphasis on “how” companies conduct them. Now, the two agencies are more actively coordinating on investigations involving accounting fraud and FCPA issues.

In a panel discussion, Rex Homme of StoneTurn and Catherine Moreno of Wilson Sonsini will focus on the impact of heightened scrutiny on corporate compliance programs, best practices for responding to government inquiries and how to avoid enforcement actions.

The rapid growth of so-called “unicorn” companies – privately held start-ups with valuations of more than $1 billion – presents a number of significant regulatory challenges and risks. Although many people believe that special rules and exemptions apply to unicorns, in fact, unicorns may not be so unique in the eyes of regulators. Much like public companies, it is more important than ever that they focus on developing appropriate legal and compliance procedures surrounding capital raising, public disclosures, options compensation, and related issues to avoid, or best respond to, scrutiny by regulators, including the U.S. Securities and Exchange Commission (SEC).

· The Unicorn Landscape
· Jurisdictional “Hooks”
· The Vulnerability of Unicorn Companies
· Transitioning from Private to Public: What Happens Next?
· The Trump Administration and the Current SEC Environment

The recent Equifax data breach is perhaps the largest in history and has barraged the company and its senior executives with a complex and challenging range of legal, financial and technological issues -- issues that every corporation and its outside counsel will inevitably (and unfortunately) encounter.

In this timely webcast, John Reed Stark, seasoned data response professional and former Chief of the SEC's Office of Internet Enforcement, drills down to explain it all.

Don't miss this early opportunity for a detailed analysis, presented in plain English, of the many critical caveats, reminders and takeaways from this evolving and ironic cybersecurity incident.

After a significant corporate crisis event, issuers are often forced to navigate concurrent matters in multiple jurisdictions. The matters at issue may involve internal investigations, SEC and DOJ investigations, exchange listing inquiries, private class actions and derivative actions. There are multiple constituents in each of these forums -- many of which have competing interests and agendas.

Decisions made in one forum can, and often do, have significant impact on the other. Having a thorough understanding of these competing interests and procedures is imperative in successfully coordinating navigating this complicated playing field.

Join an experienced panel of securities lawyers and forensic accountants who conduct investigations, interact with government regulatory entities, audit committees and independent auditors, and represent issuers in multiple jurisdictions, as they discuss the often overlooked implications of dealing with multiple investigations and actions.

In May, 2016 the Financial Crimes Enforcement Network (FinCEN) issued final rules under the Bank Secrecy Act to clarify and strengthen customer due diligence requirements for: Banks; brokers or dealers in securities; mutual funds; and futures commission merchants and introducing brokers in commodities. The rules contain explicit customer due diligence requirements and include a new requirement to identify and verify the identity of beneficial owners of legal entity customers.

Join a distinguished panel of industry professionals to discuss what the rule requires and what it means to your firm. More importantly, the event will include a practical discussion of what firms should be considering and doing in advance of the rule’s May 2018 final applicability date. Topics to be covered include:

· How do financial institutions (“FIs”) intend to identify and verify Beneficial Owners (“BOs”) and Control Persons (“CPs”)?
· What is a “customer profile” and what do you do with it?
· How will the rule affect transaction monitoring, suspicious activity investigations and reporting from both a technology and compliance program standpoint?
· What risk-based trigger events are FIs considering when updating beneficial ownership information?

As the Bribery Act starts to bite, the UK Government looks to abolish the SFO!

On the 6th anniversary of the Bribery Act entering into force we have now seen further significant enforcement activity in the UK.

In this webcast, our panel of expert UK attorneys and consultants look back over the last 12 months and forecast where we see developments in the year to come. The panel will discuss issues including:

-- Key developments over the last twelve months, including the Rolls Royce DPA and corporate prosecution under the Bribery Act.
-- What’s next:
* DPA’s v. Prosecution. Latest developments?
* Privilege and bribery investigations, what are the issues coming out of ENRC?
* What is the future of the SFO?

This webcast will consist of an analysis of the issues commonly confronted in fraudulent transfer litigation under the U.S. Bankruptcy Code and state law. The first portion of the program will provide attendees with an overview of the relevant legal aspects of the fraudulent transfer litigation, including discussion of:

The second half of the program will focus on valuation analyses often performed in conjunction with constructive fraud claims under §548 and state law, including:

•Performing the balance-sheet test;
•Assessing the adequacy of capital; and,
•Analyzing the debtor’s ability to pay debts as they become due.

Numerous case studies will be used during the program to highlight the legal and valuation issues.

The program and a Q&A session will be presented by litigation and bankruptcy attorney Dion Hayes from the law firm of McGuireWoods LLP and valuation experts Jeff Litvak, Scott Friedland and Clara Chin of FTI Consulting.

For legal and compliance professionals, data breach response is where FCPA and AML were fifteen years ago – quietly and quickly emerging as the fastest and most lucrative legal and compliance practice area. Every white collar defense and commercial litigator, and attorneys and other professionals in related areas, should be preparing to enter this exploding marketplace.

Just like any other independent investigation, data breach response requires careful legal navigation. In addition to the governmental investigations and litigation, the list of civil liabilities after a cyber-attack is almost endless, including shareholder lawsuits for cyber security failures; declines in a company’s stock price; and management negligence. There may also be consumer/customer driven class action lawsuits against companies falling victim to cyber-attacks, alleging a failure to adhere to cyber security “best practices.”

Legal and compliance professionals who understand data breach response can also provide critical strategic benefits for their clients, such as: 1) serving as an objective sounding board to IT staff tasked with designing, implementing, and reviewing data security practices and remediation; 2) reviewing privacy policies; testing representations made to consumers, and evaluating how outsiders might exploit those representations in court; and 3) assisting in litigation-testing the "reasonableness" of cybersecurity practices.

In order to meet this growing client need, legal and compliance professionals must first understand the intricacies of a data breach response. This webcast fills that critical gap — reviewing data breach response workflow in plain English, designed exclusively for legal and compliance professionals who want to take the lead of, or assist with, data breach response engagements and investigations.

With the change in administration and the replacement of SEC Chair White, the state of SEC enforcement is in flux, and public companies are pressed to reevaluate how they deal with regulators and manage internal processes. This webcast will provide an in-depth examination of the projected 2017 areas of SEC focus, as well as an overview of how in-house counsel and finance teams can avoid missteps in this evolving financial reporting landscape.

This program and Q&A session will be presented by SEC investigations and white collar defense attorney Nicolas Morgan from the law firm of Paul Hastings LLP, and forensic accounting, regulation and compliance expert Jean Chow-Callam of FTI Consulting. The presenters also will discuss steps for dealing with regulators and managing internal processes to simultaneously avoid and prepare for investigations, and other highlights from their article “Top SEC Concerns in Public Company Financial Reporting to Watch in 2017” published in Bloomberg BNA Insights in February 2017.

The word is out—the SEC has made good on its promise to pay millions of dollars in awards to those who come forward with evidence of securities law violations and employees are taking notice. For the fifth consecutive year, 2016 saw the number of tips flowing into the SEC Office of the Whistleblower reach a record high, including a new high for complaints of FCPA violations. In 2016, the SEC awarded to whistleblowers over $57 million—higher than the combined award amount from all previous years.

Meanwhile, the SEC’s Division of Enforcement brought multiple enforcement actions to discourage what it views as overly restrictive employee severance and confidentiality agreements as well as an unprecedented stand-alone enforcement action against an employer for allegedly retaliating against a whistleblower employee. In addition, federal courts across the nation continue to reach disparate conclusions concerning the scope of Dodd-Frank’s whistleblower retaliation provisions. These trends, coupled with dynamic developments in FCPA enforcement, provide the perfect storm for keeping in-house counsel and compliance professionals up at night.

The panel discussing these developments will include Patrick F. Stokes of Gibson, Dunn & Crutcher and Sean X. McKessy of Phillips & Cohen, respectively the former chiefs of DOJ’s FCPA Unit and the SEC’s Office of the Whistleblower. Joined by co-panelists F. Joseph Warin and John W.F. Chesley of Gibson Dunn, Erika A. Kelton of Phillips & Cohen, and Jim Barratt of FTI Consulting, this free 90-minute webcast will include a dynamic and participatory discussion on Dodd-Frank’s statutory and regulatory framework, discuss its early and recent interpretations by the SEC Office of the Whistleblower and federal courts, analyze the statute’s intersection with the FCPA, and provide participants with practical tips for navigating the minefield of whistleblower complaints.

In this annual webcast, our panel will analyze key developments in SEC enforcement and notable events from 2016, and will discuss what to look for in 2017. Among other items, the panel will address:
•The change in leadership at the SEC and what to expect;
•Results of litigation and current issues arising from SEC actions;
•Themes from cases involving the FCPA, financial fraud, gatekeepers, market structure, insider trading, and investment management;
•Updates on the Whistleblower Program, use of technology, and other ongoing initiatives;

Please join panelists Bill McLucas and Doug Davison, securities partners at Wilmer Cutler Pickering Hale and Dorr LLP; and Marty Wilczynski and Steve Richards, Senior Managing Directors with Ankura Consulting as they address these and other developments in SEC enforcement.

In recent years, criminal fines and penalties have risen drastically as a result of price-fixing and bid-rigging conspiracies uncovered among automotive parts manufacturers. While companies face these mounting fines, they need not accept the fine initially imposed. The United States Sentencing Guidelines do allow for a reduction of a criminal fine based on a company’s inability to pay. This webcast seeks to inform practitioners on the considerations of this ability-to-pay defense, strategies and process. As an illustration, this webcast includes a case study analyzing a company’s ability to pay a fine resulting from antitrust violations; however, the described methodology has other applications. Additional arenas where this defense has relevance include environmental clean-up costs, healthcare fraud, securities and commodities fraud, as well as FCPA and sanctions violations.

The session will provide insight into the financial analyst’s role in evaluating the company’s financial status and the basis of the framework for the ability-to-pay argument. As part of the case study, the session will walk through an ability-to-pay model including analysis of projected free cash flow and the strength of the company’s balance sheet. Lastly, the session will address the importance of the financial expert’s role in discussions with the DOJ and its financial expert.

The SEC has been very active in pursuing enforcement cases relating to accounting errors that led to a restatement. The decisions of the board of directors and management before, during, and after a restatement will be under scrutiny. A company’s actions in investigating and correcting accounting errors and ultimately restating financials are critical to avoid a prolonged SEC investigation, increased liability in civil litigation, loss of confidence by lenders and shareholders, and potential delisting by an exchange. Appropriately managing a restatement requires special care and skill.

Join us for this webcast on Wednesday, September 21, 2016 at 1:00 pm to hear a leading practitioner’s perspective on how to avoid potential pitfalls in the restatement process.

In April 2016, the Department of Labor issued final regulations expanding the definition of “fiduciary” for advisers to retirement plans, including advisers to IRAs and ERISA plans. Some advisers and financial institutions who previously were not considered fiduciaries now will be required to meet a fiduciary standard of care and, unless an exemption applies, may not engage in so-called “prohibited transactions” that create potential conflicts of interest (e.g., receiving compensation from third parties in connection with a transaction involving an IRA or an ERISA plan).

The DOL also created a key exemption known as the Best Interest Contract Exemption (“BIC Exemption”). In general, the BIC Exemption allows advisers to engage in otherwise “prohibited transactions” as long as certain criteria are met. The new regulations will be phased in over time. The new definition of “fiduciary” will apply on April 10, 2017. The entire regulatory package will apply on January 1, 2018.

In this Webcast, Brad Bondi (a partner at Cahill Gordon & Reindel LLP who leads the securities enforcement and regulatory practices) and Michael Wheatley (an associate at Cahill) will address issues concerning the new regulations, its impact on the financial services industry, best practices for financial services firms and lawyers to prepare for this new regulatory scheme, and pitfalls to avoid.

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